Career Guidance Workshop @ St. Michael college on May 31, 2012.

An over view of Bringing back the death penalty (an analysis with Islamic perspective).......

  

     

      1.      Introduction.

Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. Death penalty has very old roots; in fact, there is evidence of its application even in peoples such as Babylonians, ancient Egyptians, Greeks and Romans. Execution of criminals and political opponents has been used by nearly all societies both to punish crime and to suppress political dissent. In most places that practice capital punishment it is reserved for murder, espionage, treason, or as part of military justice. In some countries sexual crimes, such as rape, adultery, incest and sodomy, carry the death penalty.

Prime Minister S.W.R.D. Bandaranaike abolished capital punishment in 1956. However, it was rapidly reintroduced after his assassination in 1959. Opposition to the death penalty started becoming increasingly widespread and the United National Party government modified the use of the capital punishment in its 1978 rewrite of the constitution. The last execution in Sri Lanka took place in 1976.

Over the last decade however, President Chandrika Kumaratunga made several attempts to reintroduce the death penalty. In March 1999, after spurts of violence near the end of her first term in office, she stated that the government would be reintroducing the death penalty. However, she was forced to back down in the face of overwhelming public protest.

On November 19, 2004, High Court judge Sarath Ambepitiya was gunned down as he arrived home from work. He had a reputation as a judge who handed out tough sentences. This event immediately prompted Kumaratunga to effectively reinstate capital punishment. The death penalty, if put in to action would be carried out by hanging.

   2.  Purpose and goals of criminal sanction

All sanction from the smallest fine to longest prison term has a number of goals?  The basis for these goals lies deep in philosophy underlying our criminal justice network. We want our criminal justice process to accomplish something to achieve some social utility beyond merely solving crimes and catching criminals. We want to reduce the crime rate by stopping the criminal activities of apprehended offenders and deterring others from committing crimes. Sentencing is designed to achieve at least the following major goals[1]:

·         Retribution – to inflict some kind of loss on the offender and give formal public

Expression to the unacceptability of the behavior to the community.  

·         Incapacitation - to restrain the offender so as to limit their opportunities to commit

Further crime. 

·         Deterrence – to impose a penalty to either deter the individual from committing

Further crimes or to deter others from imitating the criminal behavior.

·         Rehabilitation – designed to include measures which might contribute to the person

desisting from future offences and to assist in their reintegration into society.

·         Reparation – penalties can involve direct or indirect compensation for the harm

caused to victims by the crime.

Here death penalty can be viewed in two aspect one as retribution and another one as deterrence.

Death penalty as a mode of retribution: - When someone takes a life, the balance of justice is disturbed. Unless that balance is restored, society succumbs to a rule of violence. Only the taking of the murderer's life restores the balance and allows society to show convincingly that murder is an intolerable crime which will be punished in kind.

For the most cruel and heinous crimes, the ones for which the death penalty is applied, offenders deserve the worst punishment under our system of law, and that is the death penalty. Any lesser punishment would undermine the value society places on protecting lives.

Death penalty as a mode of deterrence: - Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty. If murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life.

  2.1. How far death penalty has succeeds on its goal?

If we take death penalty as a mode of retribution it may lead us towards the traditional biblical prescriptions of an eye for an eye and a tooth for a tooth. death penalty is grant for the most grave crimes such as  murder, espionage, treason,  rape, adultery, incest, drug trafficking  human trafficking ,corruption. If death penalty grant for the crime murder that can be acceptable for the policy of retribution which stands upon retaliation but other crimes which lead to the punishment of death penalty cannot be point the death penalty as a mode of retribution because retaliation is not satisfied.

If we take the death penalty as a mode of deterrence. The fact that some states or countries which do not use the death penalty have lower murder rates than jurisdictions which do is not evidence of the failure of deterrence. States with high murder rates would have even higher rates if they did not use the death penalty[1][2].

"...Take not life, which God has made sacred, except by way of justice and law. Thus does He command you, so that you may learn wisdom?"

                                                                                                                  Holly Quran (6:151).

Life is sacred, according to Islam and most other world faiths. But how can one hold life sacred, yet still support capital punishment? The key point is that one may take life only "by way of justice and law." In Islam, therefore, the death penalty can be applied by a court as punishment for the most serious of crimes. Ultimately, one's eternal punishment is in God's hands, but there is a place for punishment in this life as well. The spirit of the Islamic penal code is to save lives, promote justice, and prevent corruption and tyranny.

Islamic philosophy holds that a harsh punishment serves as a deterrent to serious crimes that harm individual victims, or threaten to destabilize the foundation of society even though there are arguments going on supporting the death penalty as a mode of punishment and opposing death penalty as a mode of punishment.

   2.2.  Supported Argument for Death Penalty as a mode of Punishment

Death penalty is as controversial as any issue in criminal justice. in general the proponents of the death penalty argue that its use is justified in terms of just desserts that taking the life of one who has taken another life is the only just retribution. This stance is supported by tradition going back to biblical prescriptions of an eye for an eye and a tooth for a tooth proponents also are that the death penalty is necessary to deter others from committing murder and other atrocious crimes and that without it there would be little reason for criminals to refrain from killing even more frequently. They see, for example, a kidnaper having “noting to lose “in killing rather than freeing a hostage without the death penalty to serve as a restrain[3]

they also argue that execution is the only assurance a criminal will never again commit a murder or another crime , and an assurance that does not hold for life term prisoners who may and indeed sometimes do, commit crimes while in prison or upon release[4]. (In fact, most lifers are eventually release)

Proponents also hold that the death penalty is an essential social symbol, expressing the boundaries of our cultural standards of decency and humanity. All societies must set out a limit beyond which deviant behavior cannot be tolerated: the death penalty, according to its proponents is a clear end firm statement of our outrage at and revulsion for murders acts.

   2.3.  Opposed Argument for Death Penalty as a Mode of Punishment

opponents of the death penalty point out that mistakes can and have been made in its imposition, that innocents person have been executed and, of course, that there is no remedy for any such mistakes[5].  Opponents also maintain that the publicity surrounding an execution may attract unbalanced people to commit capital crimes rather than deter potential murders, as they seek the attention given to the person being. Executed and therefore commit crimes in order to be on center stage to them. Police agree that when well publicized mass killers are being sought for instance, a number of “crazies” attempt to surrender and confess to crimes they never committed[6].

Moreover even if the deterrence effect of execution on rational persons is greater than the attraction they exert on potential murders (as it probably is), opponents argue that the kind of crime for which we use capital punishments are essentially non deterable. Murder, torture, mayhem, and the like originate in deep seated psychological and psychiatric personality factors just as terrorism and espionage martyrs are amenable to change by making example of others. Capital punishments might deter rational and calculated offences, like many white collar crimes, but it is not used in these cases. Only murder elicits the death penalty today.

 3.   Conclusion

“I don’t think you should support the death penalty to seek revenge. I don’t think that’s right. I think the reason to support the death penalty is because it saves other people’s lives.”

-GEORGE W. BUSH, presidential debate, Oct. 17, 2000

Whatever the persuasiveness of the argument and counter arguments regarding the death penalty, it is clear that the majority of srilankans wish to have it kept on the books and used for murder and perhaps for other atrocious crimes on the other hand[7]. But the srilankan government still doesn’t have the dare to bring back the death penalty into operation. Because there are several factors are being barrios to bring death penalty into operation such are religion, an oppressive and tyrannical state, in any legal system there is room for error, racism and prejudice, favors the rich, and gender[8]. some are saying that non implementation of death penalty leads to higher rate of crime in SriLanka.

But still, it is not possible to determine whether or not the non-implementation of capital punishment added to the crime rate.  The data for notorious and racist criminal justice systems where the death penalty exist sheds a lot of light.  In the USA, not all states have the death penalty. The crime data across all states does not indicate that capital punishment has contributed to lowering the crime rate. Indeed, the crime rates in states that do not have it are lower than those who do. 

In contrast Saudi Arabia, where crime is responded to with gruesome methods of punishment and where capital punishment is practiced, there is a significantly lower crime rate than in many country which don’t have or have abolished the death penalty.

Again I wish to quote some lines from very great jurisprudence…..

"...If anyone kills a person - unless it be for murder or for spreading mischief in the land - it would be as if he killed all people. And if anyone saves a life, it would be as if he saved the life of all people" (Qur'an 5:32)

Above quote may give you a clear cut view of why death penalty is indeed. every society has a social value, srilankan society have it much more, thus it virtually bringing the death penalty back into operation may reduce the crime rate in SriLanka and moreover when bringing the death penalty back to the operation law text need some reforms as follow.

• 
  
•               The reform should ensure the fair trail
• ·         minority right should be safeguarded
• ·         should consider the offenders physical and mental condition
• ·         Granting Pardon Should be limited
• ·         Reform on the text should bring into practice

However the death penalty should deter the crime and should not to be a retribution for an incident or accident.

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[1] Ernest van den Haag, a Professor of Jurisprudence at Fordham University: (………."Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks……..") for further information please visit http://deathpenaltycurriculum.org/student/c/about/arguments/argument1a.htm

[2] Criminologists' Views on Deterrence and the Death Penalty……. for further information please visit http://www.deathpenaltyinfo.org/facts-about-deterrence-and-death-penalty

[3] PATRICK R.ANDERSON & DONALD J. NEWMAN “Criminal Justice” 5^th edition. 1993. Chapter 12. p.336.

[4]PATRICK R.ANDERSON & DONALD J. NEWMAN “Criminal Justice” 5^th edition. 1993. Chapter 12. p.337.

[5] Research of Hugo Adam Bedau, a long time opponents of capital punishments and prof. Michel Radelet. according to their findings 23 person have died wrongfully at the hands of state since 1900, and another 300 were sentenced to death ( many of them spent time on death row) before they were either given new trails by higher court or exonerated. Bedue and Radelet state that in every year of this century one or more persons of death row have eventually been shown to be innocent.

[6] Hugo Bedau and Michal L. Radelet, “Miscarriages of justice in potentially capital cases,” Stanford Law review 37(1987). p. 27,28,&150-156.

[7] Sunday leader 2011 October 30, “Is there a need for a revival of capital punishment” by Lakshman Indranath Keerthisinghe

[8] for the further information please  visit http://www.lankalibrary.com/phpBB/viewtopic.php?t=589

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[1] PATRICK R.ANDERSON & DONALD J. NEWMAN “Criminal Justice” 5^th edition. 1993. Chapter 11, p.288.

My Current Research Program

Undergraduate Research Proposal

LL.B degree program

Title of the Dissertation:

“PRE-EMINENCE MUKKUVAR’S CUSTOMS AND CHANCES OF PLACING IT INTO

LEGAL SYSTEM OF SRILANKA”

AN EXPLOSIVE STUDIES WITH SPECIAL REFERENCE TO CUSTOMS OF MUKKUVAS COMMUNITY THOSE REMAINS IN EASTERN AND SOUTH EASTERN PROVINCES.

MR. S. PRADINATH.

LL.B 3RD YEAR STUDENT, DEPARTMENT OF LAW,

UNIVERSITY OF JAFFNA.

2009/L/013

pradinaths@gmail.com

&

MR. M.M. RADHEEF AHAMED.

LL.B 2ND YEAR STUDENT, ­DEPARTMENT OF LAW

UNIVERSITY OF JAFFNA.

2010/L/001

radinfotech1990@gmail.com

Introduction:

They call Eastern Sri Lanka as the land of singing fish. They also believe that they were settled here by a Tamil king called Pandia or during the period of a king Pandia, The Mukkuvar community is a major and main component of Eastern Tamils. They follow MukkuvaLaw which is believed to be issued by king Pandia. Each and every script's end mentions this is the order of king Pandia.

The history of Maddakalappu Tamilakam a local lore says about the Mukkuvar, that when they came from Tamilnadu a fishing caste called Thimilar were already living here, Mukkuvar with the help of muslims fought with Thimilar and expelled them from the land. After that some people came from Kerala and Jaffna a city in the north of Sri Lanka.

Unfortunately, nowadays customs of the Tamils in east and south-east losing its legality in its own land, because of absence of proper legislative enactments or no proper codification on the Mukkuvar customs. Due to this trend, people has been started to forget mukkuvar law and its values. Indeed, this kind of mentality or attitude may give a rise that people in east abandoned their customs or their identities. In contrast, Professor Mounaguru argued that, people in east and south-east still remains with some sort of mukkuva customs and traditions. In the light of above statement our research focused on how we can reinforce of the Mukkuvar Valamai, through recognition of their respective customs of tamils.

Background of the study

Affirmative evidences showing that still Mukkuva law prevailing in some areas in Batticaloa, particularly in “Paduvaankarai Area” such as, Manmunai, Kokoddicholai, Kaluthawalai,Koyitporatheevu, Periya poratheevu, Paandiruppu and Puthukkudiyiruppu in these areas still subjecting to the customary norms of Mukkuvar law.

Roman Dutch Law is the General Law of SriLanka therefore People reside in eastern part also govern by RDL it leads to Mukkuvar Valamai subsequently losing its application from east province of Tamils. Thus an urgent need has been arise to emphasize the people and government regarding the existence of Mukkuvar Valamai and it will be an apt action to adopt it into the legal system.

Our Hypothesis is, some parts of mukkuva Valamai still governing some subject matters relating to customary marriage, succession, land law and religious rites. But the problem takes place when we try to distinguish “Actual practices” and “Mukkuva’s Valamai” because there are many practices prevailing between Tamils of east and south-east. We are witnessing that both customs are prevailing among them, and elders in such community even academic also unable to differentiate such rules from other practices.

In Batticaloa or other eastern province, there are many customs or community of people living together, it is difficult to enforce a particular law on different types of community. But we can see Mukkuvar Valamai never intent to restrict its applicability into the “Mukkuva community” only. Mukkava Valamai is applicable to all cast or community of people without any discrimination. It contains no discriminating laws or rules, and Mukkuva Valmai is a best example for, that “law can make harmony between different communities or castes”. Mukkuva Valamai made mutual acceptances of all laws and rules of different types of community and enshrined those rules as an important identity of such community. This is a fundamental frame work of the Mukkuva Valamai.

“Law should reflect the Basic aspirations of People, Not representatives or particular persons”. Mukkuva Valamai is a “un codified aspirations of eastern people”, such rules forgotten by rulers of such community. Indeed such rules consists much wider and very deepest social norms and values of Tamils.

Notwithstanding RDL started to enforce its laws/rules, without any considerations of basic norms of Tamils in east. Unfortunately we are under the obligation to follow RDL with abandons of our identities. RDL was made by its own people; it is suitable for Dutch people not for Eastern SriLanka. RDL don’t know about the basic norms of Tamils in east, it doesn’t know about the customs, traditions and aspirations of Tamil people in east. Indeed Mukkuvar Valamai is a best Law which reflects all aspirations of Tamils in east. RDL has no probable maintain harmony between different communities or societies.      

          

Judicial attitude toward “Mukkuva Valamai”, many decisions of district court of Batticaloa, gives effects to the mukkuva Valamai Another view, due to the long prevails of the mukkuvar Valamai, which governs relationship between Tamils and Muslims. So logical thinking whether muslim law has been influenced by the mukkuvar Valamai or not?

And also we have to consider whether mukkuvar law had adopted any provisions from muslim law? or what kind of Legal context exists in such situation? Can we observe any legal fraternity between muslim law and mukkuva law?

Mukkuvar Valamai guides all conducts of Mukkuvar people but this research focus mainly on Mukkuvar Valamai Related with Property, Marriage, Succession and business Activities.

Research Problem

The basic principle of the law is “it should reflect the aspiration of the people and their customs”. Laws made without a feasible study of the customs has faced utter failure. Roman Dutch May be an ideal Law to govern the people of east but it did not follows the legal heritage of the eastern people. Therefore giving legal validity to the customs which followed by eastern people till now could give better consequence rather than applying an alien law for that people.

History of Mukkuvar Valamai evidences that it was not a custom of particular class of people it’s an assimilation of customs of all eastern people. MUkkuvar Valamai Consist a proper methodology to console all kind of disputes arises among the communities of eastern province.

No effort has been made to adopt Mukkuvar valami into legal system of SriLanka which will be a great solution for Ethical disputes; therefore this research is indented to identify the customs which have the qualities to have legal Validity under Roman Dutch Law.     

Research question

1.      What are the Mukkuvar Valamai existing in now days related with Succession, Property, and Marriage and business activities?

2.      Do those customs have the validity to recognize as a law under Roman Dutch Law?

Objective

Identifying the prevailing Mukkuvar Vallamai related with the selected topic and analyzing the compatibility to enact those customs as law in Srilankan Legal System.

Scope

This Research Will Be conducted among the sample of People who are residing in the eastern coastal area because as it is feasible connecting of those people and Mukkuvar Valamai. Both genders will be concentrated for the study. The size of sampling will be limited to approximately 200 respondents, which consists Elders Who Knows the Mukkuvar custom, Academics, Students of sociology and History.

Conceptualization

Conceptualization is a system of illustrating the effects of mukkuva valami (if it legalize in future time). Mukkuva Valamaireflects the basic aspirations of all people who usually live in Batticaloa. If this Mukkuva Valamai permitted to prevail in the future, then we can establish “an indigenous rule of law” between different cast of people.

We can create a social network through legalizing the Mukkuva Valamai, which enshrines the social values of different kinds of casts. Social justice is the goal of the law. Usually we have all the features of these social values or Social justice in mukkuvar Valamai. So urgent need arises that Mukkuvar Valamai should convert into law.

Hypothesis

H-01

Mukkuva valamai is still prevailing in the areas surrounding Batticaloa. Especially Mukkuva valamai is still prevailing throughout Eastern and some parts of south eastern. And these usages or customs cannot be separate from eastern people.

H-02

We can bring the “Mukkuva valamai” into Legal System of SriLanka. Some conventional usages, traditions, and customs found in Mukkuva valamai are capable of being subject to the legal system of SriLanka by the operation of Law.

H-03

Proving that, if Mukkuvar vallamai bring into application among the eastern part of SriLanka, then we will realize the social unity between species, and good relationship among the community.

Methodology

The information and data for this research will be gathered from primary as well as secondary sources.

Sources of Data

Secondary data from sources such previous research article on published and unpublished Case laws, government records, Historical books, Law books, journals, , Inscriptions, etc will be used.

For the primary research, the data collection will be through the questionnaire survey. The research questionnaire to be used will be designed taking into the account the variables that are to be measured. A professional way will be taken into the account in the preparing questionnaire by the giving a proper weight age to all needed information.

In the following diagram, I have shown how I am going to initiate this research on “Pre-Eminence Mukkuvar’s Customs and Chances of Placing It into Legal System of Srilanka” an explorative study with special references to

                          Research

Primary                                                                                                                Secondary

        Qualitative                                                                                             Historical Books

            In depth Interview                                                                               Case laws

       Quantitative                                                                                          Journals

            Questionnaire Survey                                                                         Inscriptions

                  Mail                                                                                               Government records

                 Face to Face               

                  Telephone                                    

                   Postal               

Limitations

This research based on very sensitive feature such as culture, religious beliefs, and political ideas. So the response from the target sample group people may vary. The information given by those people may not have absolute accuracy; definitely it has to be revised with the light of some other stuff.

No response from respondents is the most important issue, self-administrated questionnaire, telephone questionnaire survey; email questionnaire survey will be conducted based on the time constraints of respondents wherever possible and convenient to respondents.

Methods of Data Analysis

Data collected from primary and secondary sources will be collated and analyzed. Such data, after collation, will be analyzed using Case studies and other relevant measures. All data’s will be categorized and codified with the use of specialized software then it will be analyzed.

ABOUT THE MUKKUVAR VALAMAI

Mukkuvar Valamai is a Heritage customs of eastern Tamil people of SriLanka. Indeed mukkuvar valamai is legitimized customs of three tribal groups of the population. The conventional customs; known as Mukkuvar valamai is not unique tocommunity of mukkuvars alone.  Mukkuvar community is the major ethnic community and there are many branches of ethnic groups of people lived together in east and south east. Small ethnic groups did not considered as a lower status in the “rule of law” or they did not treated as lower status in “uniqueness of community”.    

Mukkuva valamai has received several adjustments took place time to time, according to the needs of society, economic developments and political changes. In fact core elements of Mukkuvar valamai never changed. The historical evidence suggested that, all customs and usages of mukkuvars , first time in the history, was codified by King Maagon (மாகோன்).  

When the Roman Dutch Law was in effect, mukkuvar valami was codified by Dutch governors. But they did not implement those rules into eastern province nor didn’t they make any such proclamation about implementation of mukkuvars valamai. Because at that time numbers of mukkuvar community is less than required, by such reason Dutch may not implement the mukkuvar valamai. Some people claim that the mukkuvar valamai was not in use very longer and it cannot be used as a valid customs. This kind of arguments is not true.